At the heart of the matter is the question: What does Section 35 of the Constitution Act, 1982, mean? Provincial and federal counsel have argued that it is an empty box that does not contain any rights unless agreed to by the Crown or established by court decision. Conversely, Indigenous peoples, who have lived on these lands much, much longer than Canada has existed, have argued that section 35 is a full box of rights that Indigenous peoples possess, including Aboriginal title. The Crown continues to rely on the Doctrine of Discovery, the framework used by England, France, Spain, and Portugal that asserted that lands they stumbled upon were effectively empty at the time of “discovery.” Indigenous peoples recognize the doctrine as the legal, political, and moral fiction that it is.
